December 2, 2020

WHO SHOULD BIDEN APPOINT AS SECRETARY OF EDUCATION?:  He promised voters that he would appoint a teacher. But a piece in the New York Daily News urges him to break that promise.  It suggests instead that he appoint the current chair of the U.S. Commission on Civil Rights.

Here is one reason such an appointment would be controversial: While she served as Asst. Secretary of Education for Civil Rights, she issued the notorious transgender bathroom guidance, which, as I explain here, was at best a misinterpretation of applicable law.  (The guidance was withdrawn by Attorney General Jeff Sessions and Secretary DeVos in the early days of the Trump Administration, but it can easily be brought back during the Biden Administration.)

Some people are assuming that Bostock v. Clayton County, in which the Supreme Court held that gender identity discrimination can be a form of sex discrimination under Title VII, vindicates the transgender bathroom guidance.  Actually it’s the opposite.  It makes the cases against the guidance even stronger.

There are other reasons that such an appointment would be controversial.  I may touch on some of them later.

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